Abstract:
Jon Gould and Stephen Mastrofski document astonishingly high rates of unconstitutional police searches in their forthcoming article "Suspect Searches: Assessing Police Behavior Under the U.S. Constitution" to be published in Criminology & Public Policy (2004). By their conservative estimate, 30 percent of the 115 police searches they studied violated the Fourth Amendment. The vast majority of the unconstitutional searches were invisible to the courts, having resulted in no arrest, charge, or citation. Focusing exclusively on stop-and-frisk searches, an even higher proportion - 46 percent - were unconstitutional. Moreover, 84 percent of the searches involved African-American suspects.
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This is why I suspect that the exclusionary rule is perverse. The main defense of the exclusionary rule is that it somehow protects the innocent by proxy, by giving the police an incentive to behave. In reality, it looks like this defense is false. Perhaps there would be even more innocent people searched improperly if not for the exclusionary rule. Perhaps. But it seems that a lot of innocent people are searched anyway.

Whether it's feasible to give these innocent people a tort remedy against the police officers, I don't know. I wish it were so. Maybe they can console themselves with this thought: "Gee, if only I had been guilty, the police might have found some evidence. And then, if I had been prosecuted, I would have been able to throw the evidence out. How thrilling that would have been. But I'm innocent; so if I had mysteriously been prosecuted anyway, I would have been able to exclude this ill-gotten non-evidence from being presented. Or something."

UPDATE: Ampersand says that I have made a "very unconvincing argument" against the exclusionary rule. If one of the main purposes of the rule is to provide indirect protection for the innocent, what we would need to see is a study that examined the number of innocent people searched unconstitutionally both before and after the exclusionary rule was adopted (i.e., the 1961 decision of Mapp v. Ohio.) I don't know that such a study exists. From what I can tell, the exclusionary rule prevents successful prosection in about 1 percent of criminal cases, which suggests (but doesn't prove) that the police may not view the exclusionary rule as much of a deterrent. Then there is the fact, noted above, that innocent people are indeed unconstitutionally searched at a high rate. So I suspect that the exclusionary rule isn't doing all that much to protect the innocent.

1 Comments:

i'd be willing to co-author the dummies guide to suing racist cops [or whatever we chose to call it.] the black panthers used to do this. my roommate [groups.yahoo.com/group/joellsparty] won $10k + fees in indianapolis v edmonds, which went to the supreme court.there seems to be a shortage of lawyers to take these cases, but no shortage of black guys in jail who have cases. it needs to be automated, cookie cutter assembly-line style. if public defenders had counterclaims built into their plea negotiations, it could change the settlement dynamic. i haven't figured out how to make a living at this stuff yet; i do my cases one at atime, reinventing the wheel.